Court Confirms Police Don't Need A Warrant To Do A Limited Search Of A Mobile Phone

from the lock-it-down dept

In a court ruling that came out a little while ago (just catching up now), Judge Richard Posner took the lead in an appeals court ruling that effectively reaffirmed the idea that police don't need a warrant to search mobile phones as they're arresting someone. Of course, this general concept is not new and I've discussed my concerns about police being able to search phones without a warrant in the past -- but this particular ruling does seem pretty limited. While Posner notes some of the bigger questions, he basically compares the phone to a diary, and focuses on the mere searching of basic data, like the address book, to suggest this particular search was limited, and doesn't raise any significant 4th amendment issue.

It’s not even clear that we need a rule of law specific
to cell phones or other computers. If police are entitled
to open a pocket diary to copy the owner’s address, they
should be entitled to turn on a cell phone to learn its
number. If allowed to leaf through a pocket address
book, as they are, United States v. Rodriguez, 995 F.2d 776,
778 (7th Cir. 1993), they should be entitled to read the
address book in a cell phone. If forbidden to peruse love
letters recognized as such found wedged between the
pages of the address book, they should be forbidden to
read love letters in the files of a cell phone.

Effectively, the court more or less says that circumstances matter, and that in situations where there's a chance that data will get deleted or modified, it's perfectly reasonable to do a simple search of the mobile phone, but it could get thornier if it moves more in the direction of voyeurism, rather than as evidence for crimes. I'd certainly prefer much stronger privacy protections -- especially as a phone really is a window into much, much more than just a phone, but the ruling isn't much of a surprise and seems to align with other rulings on similar issues.

What if your phone is password locked (or swipe locked, whatever you call the combination of movements to unlock it that only you're supposed to know). Can they force you to unlock it? How does that play into all of this? I would say they shouldn't be allowed to, but is there any case law about this?

Moral of the story...

Just like your online presence on social networks, don't have anything on your phone you wouldn't want the world to see.

If your phone is locked with a password, I wonder if that counts as not able to be "searched" similar to if you get pulled over by a cop and he asks you to get out of your car. If you do, lock the door. He can't legally ask you to unlock it without a search warrant.

Phone

Does the phone have to be in your pocket or hand? Does it give them the right to search your car to find a phone? If you don't have it on you, can they force you to find it for them?

If police are entitled to open a pocket diary to copy the owner’s address, they should be entitled to turn on a cell phone to learn its number.

If police are entitled to open a pocket diary to copy the owner’s address, they should be entitled to turn on a cell phone to learn its number.

Because they might delete their phone number? Obviously it is more about:

If allowed to leaf through a pocket address book, as they are, they should be entitled to read the address book in a cell phone.

If you are being arrested, then they are taking you into custody. If the situation warrants (no pun intended) it, they should take you before a judge to review the contents of the phone as deemed necessary. No warrant per se, but oversight.

What I find interesting here is another wonderful contradiction of Techdirt.

Here we have a situation where pretty much Mike is crying out for new laws, preferring strong privacy protections. Essentially, the law hasn't caught up to the idea of smart phones, and he wants them to address it and to tighten restrictions.

Yet, on the other hand, where the law doesn't handle online abuses of copyright or trademarks very well, he is against any new law that would cover the new situation and tighten restrictions.

If the existing laws are generally good enough, I would say that they are generally good enough across the board. Sucks when they don't agree with your view of the world, don't it Mike?

Re: Moral of the story...

The ruling of this court is essentially to use the real-world analog as far as searches are considered, which means they would hold that a password affords the same protection as a combination lock. Since (I'm pretty sure) the locked rule applies generically to all locking mechanisms, yes, they need a warrant.

This is reinforced by the fact that there are digital locks that are used for doors (hotel rooms, high-tech safes, etc) and thus the method of locking is actually identical to locks where the protection is clearly afforded.

I wonder why this is so hard for courts

Maybe the problem is in the language. For a lot of us, it's not a "phone", it's a mobile communications device or basically a laptop computer. Even some of the most basic mobile phones have more memory and computing ability than a desktop computer from the 90s.

The courts shouldn't be looking at a mobile phone as a pocket diary, unless that diary is 415 volumes and includes pictures, videos, movies, music, credit card numbers, legal documents, etc.

Personally, I'll fight as much as I possibly can. Let them sort it out in court. Without a warrant, that cop is getting jack diddly do-squat and I'm soooo not coughing up my ten digit password. I forgot it.

Re:

Each situation must be handled in its appropriate context. Unfortunately, a solution that works well in one area doesn't apply in other areas. Attempting to approach every issue with the same tactics is one of the primary failings of rhetoric. Please start using actual arguments instead.

The fact that the digital world has differences with the physical world does not mean that new laws must be created for every aspect of the digital world. Rather, it means that each law must be carefully scrutinized prior to implementation in the digital world, to determine whether or not the differences substantially impact the law.

Further, I'd say you have mistaken Mike's position on Copyright law. It is not that he feels new laws aren't needed to enforce copyright in the digital world, but that he feels you can't enforce copyright in the digital world without destroying that world.

He actually is pushing a far more radical change than simply updating the laws (mechanism), he wants to update the policies to reflect new market realities. He wants a whole new approach to copyright for the internet.

And it is fairly evident that the internet provides significant paradigm shifts that scrutiny of policy is the proper level to begin dealing with the digital world.

Re: Moral of the story...

Well, he can't legally search your car unless he has probable cause or you say he can. So locking the door does not really help that much. If he has enough probable cause to search without your permission then he has enough to just arrest you and get a warrant.

Re:

Police are allowed to search your pockets during an arrest, as this is part of standard procedure to make sure you don't have any weapons.

Police are allowed to use the contents of your pockets, weapons or no, as evidence.

Past cases have said that this includes the full contents of a cellphone.

Regarding passwords, this denies them access to your phone through your phone (for some password software). You need to verify whether it prevents them from rooting around through files anyway.

Regardless as to the above, you might consider it worthwhile to password protect AND encrypt the contents of your phone. Recent rulings state that they need to know specifically the incriminating content they are looking for to force you to hand over the keys. If they're just fishing, these locks will hold.

I agree with this court's ruling as it does try to limit the exposure of the smartphone data to similar real-life situations without a carte-blanche dictate that they have absolute access.

Re: Phone

I think the problem here lies with defining exactly when such search is applicable. If a cop is just stopping you randomply to check your documents/car then there's no need to check on your phone. Same if you are caught speeding or something that will at best give you the lil yellow paper. The only situation when police can conduct a search in [insert whatever here, including phone] without a warrant is when they are arresting the person for any reason. Even with that we know the cops will often abuse their authority by arresting you for [insert idiotic reason] so this can get ugly..

In the end, the real problem is the extreme overreach of the police apparatus and how dangerously close to a Police State the US is.

Re:

Android has this neat feature where you can SPEAK the sms you wanna send. And my car has this neat sound system that can capture my voice and send to my phone via bluetooth. And I often pull over and send text while parked if I'm sending via my second phone (that's like 5 years old so it doesn't have these magical things). So no, it means nothing.

No. Fucking No. Just No.

You wanna know my problem with this? Math.

Number of people who have committed terrorist acts, both foreign and domestic, including in war zones such as Iraq, since 2001: less than 8,000. Note that this is a very GENEROUS estimate, based on the Pentagon's PR data. Internal DOD data (posed on Wikileaks) puts this closer to 3,000.

Number of people who's private information, as a result of being stored in a "secure government database" has been leaked to the public as a result of Anon and Wikileaks alone: over 80,000. This is from a single hack alone, actually, of which there have been several dozen since 2006.

Sorry, but no, you can NOT have access to this data, because you can NOT be trusted to keep it secure. If that means 50% more terrorists get through, fine, I live in middle-of-nowhere, Alabama and don't give a flying shit if 5 civilians in a metropolitan area die at the hands of a raging lunatic. I can live with that. What I cannot live with is me, those 5 poor bastards, and the other 357,000,000+ Americans being subjected to the police-state-of-the-month so that we MIGHT, MAYBE, POSSIBLY, KINDA, SORTA stop the raging lunatic from doing what he's probably gonna do, and get away with, regardless. What is private is PRIVATE and I do NOT trust the government (and the lowest bidder) to keep it that way, even if they do try to.

In the words of Benjamin Franklin (yanno, one of those "founding fathers" people keep throwing around so much) "He who would sacrifice liberty for security deserves neither." I don't know about the rest of the witless-idiot American public, but I would NEVER sacrifice my rights, my fellow citizen's rights, nor the lives of over 5,000 soldiers, just so I could save a few dozen civilians who, frankly, if they'd pay more attention to the world around them instead of burying their nose in their iPhone, could've probably saved themselves.

Re: Re:

I just think it's odd that Mike is seemingly in a rush to resolve this issue, because it's pressing to his rights, but pressing issues for other people's rights are just not important enough to him to work on.

Re: Re: Re:

And tell me...where does cyber security fit in to the copyrights/trademarks you mentioned earlier? And no, its not like he hasn't "considered the implications". From what he wrote above, it seems like he has.
Tell us exactly why its wrong for Mike to "be in a rush to resolve this issue". If you want to start a discussion, go ahead, but give us something to go on. Who knows, you could be right, but simply saying its "odd" is not enough. You have to provide context.

Re:

What I find interesting here is another wonderful contradiction of Techdirt.

No contradictions to be found here.

Here we have a situation where pretty much Mike is crying out for new laws, preferring strong privacy protections. Essentially, the law hasn't caught up to the idea of smart phones, and he wants them to address it and to tighten restrictions.

The law hasn't caught up with how to protect the privacy of someone who carries around their entire life in a convenient pocket sized computer. I think that is an important area to focus on creating narrowly defined protections for citizens' privacy.

Yet, on the other hand, where the law doesn't handle online abuses of copyright or trademarks very well, he is against any new law that would cover the new situation and tighten restrictions.

No. He is against new laws and enforcements that shatter the current protections for citizens' privacy and security. If a law was proposed that did not have severe consequences for privacy and security rights of citizens, I am sure Mike would be more willing to consider it. However, no recent law has been able to show that it does not harm privacy and security rights of citizens.

The key issue you fail to understand is that people's privacy and security trumps your right to have a monopoly.

The great thing about computing its that it is an extension of your mind, both for storage and for analysis. So, the reason its important to have privacy in your computers is the same reason you have the right to remain silent.

Re: Re: Re: Re:

It's not wrong to rush to resolve an issue, but if this issue is a rush to resolve, shouldn't other issued raised by technology also get them same express service? It's wrong to cherry pick which items are worthy of a rush, and which items aren't so important because they might actually limit your rights, rather than expanding them.

For Mike, it's all a one way street. Either we are rushing to expand or protect your rights, or nothing should be done. If anything would limit your rights, or more strongly support existing rights for others, well, it's bad.

Re: Re:

Re: Re: Moral of the story...

The line is "I do not consent to searches, but I am happy to wait while you get a warrant." if the cop has a reason to search your car he won't ask, he will just do it while you sit on the side of the road in handcuffs. If he tries to push you by asking "why not you have something to hide, blah blah" repeat the statement above then ask "Am I being detained, or am I free to go" at which point he is supposed to either arrest you, give you the ticket, or let you go.

Don't fall for shit like "Do you mind if I search your car" as yes or no could be interpreted as permission, or the infamous "What would you say if I asked to search your car"

No texting while driving laws

How does this play out in states where there is a law against sending or receiving text messages? Assuming the law is enforceable, potentially looking down is probable cause for someone committing the crime of texting while driving, then naturally you could perform a search of the phone to see if a text message or email was just sent or received.

Re: No. Fucking No. Just No.

Keep going with your math. How many of those generous 8,000 were just idiots who tweeted something the government didn't like? How many of them were idiots who only did the terrorist thing due to the FBI pushing them along? How many of them were just people in the wrong place at the wrong time?

Re:

My understanding (IANAL) is that if something is locked a warrant would be required to compel the act of unlocking. I can't see how this would be any different if the lock is digital as opposed to physical. And beyond that, if they can't open it themselves, you could potentially stand on the 5th amendment to refuse.

For instance, if a police officer pulls you over, with probable cause, they could do0 a plain sight inspection of the contents of your vehicle, but if they wanted to get in the trunk or a locked glovebox, they would need a warrant. Likewise, in the example illustrated in the article of an address book, they could look through the book and view what pertained to whatever prompted the search but would need to exclude anything that was unrelated to why they flipped it open even if it was evidence of a separate crime. If the address book or diary had a lock on it, they could not force it open without your consent or a warrant. I would think (read: hope) that applies the same to digital locks.

Re: Being Civil

Limited! Coming to a jurisdiction near you! Get yours while they last!

It's not much of a stretch to expect that the po-leece will contrive to reinterpret the term "limited" for us by using dozens of trifling exceptions, established by legal precedent, to nibble away at the currently-accepted definition of the word. Eventually, we may find that "limited" has suffered the same fate at the hands of law enforcement as "unlimited" has at the hands of the telcos -- ambiguity, and therefore uselessness for the purpose of delineating much of anything in certain contexts. Up is down, down is up, war is peace, peace is stagnation...

Re: Re: Moral of the story...

So, why is it bad legal advice to require a search warrant to dig through your personal property? Are you so against privacy rights that you're willing to let anyone with a tin plate stapled to their shirts (and the US is the only country with the ego to wear these tin stars) dig through your personal belongings and private life? I surely am not.

Simple...

This is easily solved via technology and procedure. Lock your phone, encrypt the SD card, refuse to give access without a warrant AND an attorney present. Simple. If they try to get access by force, contact an attorney and sue.

Re: Moral of the story...

Easy fix

Another thought.

Perform a factory data reset on your phone if you are ever pulled over. But don't fumble around too much getting it done, as the officer may become nervous & suspicious that you are trying to hide contraband, going for a weapon, or even trying to destroy evidence ;)

Then, pull your SD card out, and fick it to a dark corner of the vehicle. (Obviously I am joking here about the SD card, that is unless the officer is rediculously slow to approach.

By performing a FDR, who's to say that phone was your primary phone, or that you even own a phone? Perhaps you are just carrying a reset phone to your friend or family.

But of course make sure your important data is being backed up, before the unfortunate event of a pull-over.